Victor Porfirio Baloa Diaz, et al. v. EDI Korta LLC, et al.

CourtDistrict Court, S.D. Florida
DecidedDecember 10, 2025
Docket1:24-cv-20522
StatusUnknown

This text of Victor Porfirio Baloa Diaz, et al. v. EDI Korta LLC, et al. (Victor Porfirio Baloa Diaz, et al. v. EDI Korta LLC, et al.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Victor Porfirio Baloa Diaz, et al. v. EDI Korta LLC, et al., (S.D. Fla. 2025).

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CV-20522-LEIBOWITZ/Elfenbein

VICTOR PORFIRIO BALOA DIAZ, et al.,

Plaintiff,

v.

EDI KORTA LLC, et al.,

Defendant. _____________________________________/

OMNIBUS ORDER

THIS CAUSE is before the Court on (1) Plaintiffs’ Motion to Exclude the Expert Testimony of Defendants’ Expert Leslie Zigel on all Non-Damages Topics (“Plaintiffs’ Motion to Exclude”), ECF No. [82]; (2) Defendants’ Motion to Strike Plaintiffs’ Improper and Untimely Expert Report by Plaintiffs’ Handwriting Expert (“Defendants’ Motion to Strike Handwriting Expert”), ECF No. [86]; (3) Defendants’ Motion to Strike Plaintiffs’ Improper and Untimely Expert Report by Venezuelan Law Expert (“Defendants’ Motion to Strike Venezuelan Law Expert”), ECF No. [119]; and (4) Defendants’ Request for Judicial Notice (“Defendants’ Motion for Judicial Notice”), ECF No. [88], (collectively, “the Motions”). The Honorable David S. Leibowitz referred these motions to me. See ECF No. [102] and ECF No. [120]. I. BACKGROUND Plaintiffs filed the Complaint on February 9, 2024, alleging claims of copyright infringement against Defendants pursuant to the Copyright Act, 17 U.S.C. §§ 101, et seq. (“Copyright Act”). See generally ECF No. [1]. Defendants, thereafter, filed a Motion to Dismiss, which was referred to me for a report and recommendation, seeking dismissal of all three counts in the Complaint for failure to state a claim for relief. See ECF No. [15]. Once the Motion to Dismiss was fully briefed, I recommended that the Complaint be dismissed without prejudice, giving Plaintiffs the opportunity to file an amended pleading and cure the substantive and procedural deficiencies in the original Complaint. See ECF No. [29]. Following the entry of the

Order Adopting the Report and Recommendation, Plaintiffs filed their Amended Complaint, which is their operative pleading. See ECF No. [34] and ECF No. [49]. In the Amended Complaint, Plaintiffs allege that Plaintiff Porfi Baloa “is a Venezuelan musician, composer, producer[,] and arranger” who owns the “Venezuelan copyright[s]” to the albums titled “Reclamando Nuestro Espacio[,]” “Persona Ideal[,]” “La Misma Pluma[,]” “Ahora Mas Que Nunca[,]” “Búscame[,]” and “Sellos De Mi ADN[.]” See ECF No. [49] at ¶¶ 20, 22. Plaintiffs allege that Defendants infringed upon their copyrights in these works by copying and incorporating “the musical composition, [] lyrics and[,] [] sound recording[s,]” id., of those works — without Plaintiffs’ authorization — into infringing music videos that they posted to Youtube.com, see id. at ¶¶ 22-30. Plaintiffs also allege that Defendants created other, unspecified

infringing “music videos” that copy and incorporate the “sound recordings” of Plaintiffs’ other copyrighted works; Plaintiffs do not identify which of its copyrighted works Defendants copied and incorporated into the unspecified “music videos[.]” Id. at ¶ 31. Additionally, Plaintiffs allege that Defendants have accounts with various online streaming providers of music, video, and other audiovisual works, including (1) Spotify AB, (2) Apple, Inc.’s Apple Music, (3) Amazon.com, Inc.’s Amazon Music, (4) Pandora Media, LLC’s Pandora, (5) Deezer S.A.’s Deezer.com, and (6) iHeartMedia, Inc.’s iHeart.com (hereinafter collectively referred to as the “Online Streaming Platforms”).1 See id. at ¶¶ 41, 43, 45, 47, 51. Plaintiffs claim

1 “Online Streaming Platforms” also refers to Youtube.com. that Defendants uploaded infringing works that copy and incorporate Plaintiffs’ copyrighted musical compositions, lyrics, and sound recordings to the accounts they maintain with the Online Streaming Platforms. See id. at ¶¶ 42, 44, 46, 48, 50, 52. Based on these allegations, Plaintiffs raise six claims. Count 1 is for direct copyright

infringement against Korta Records Co., Luis F. Mendoza, and Leonor Mendoza; Count 2 is for direct copyright infringement against Edi Korta, LLC, Luis F. Mendoza, and Leonor Mendoza; Count 3 is for contributory copyright infringement against Korta Records Co., Luis F. Mendoza, and Leonor Mendoza; Count IV is for contributory copyright infringement against Edi Korta, LLC, Luis F. Mendoza, and Leonor Mendoza; Count V is for vicarious copyright infringement against Korta Records Co.; and finally, Count VI is for vicarious copyright infringement against Edi Korta LLC. See generally ECF No. [49]. Korta Records, in turn, filed a Counterclaim against Plaintiffs asserting three claims: (1) federal trademark infringement in violation of Section 32 of the Trademark Act of 1946, 15 U.S.C. § 1114 (Count 1); (2) federal unfair competition and false designation of origin in violation of Section 43(a) of the Trademark Act of 1946, 15 U.S.C.

§ 1125(a) (Count 2); and (3) trademark dilution in violation of Section 495.151 of the Florida Statutes (Count 3). See ECF No. [56] at 16-20. After the close of discovery, the Parties filed numerous motions that are the subject of this Omnibus Order. The first is Plaintiffs’ Motion to Exclude Non-Damages Opinions, which is directed at striking any opinions by Defendants’ expert, Leslie Zigel, that do not relate to the issue of damages, arguing that many of his opinions are not true rebuttal opinions and are instead untimely affirmative opinions. See ECF No. [82]. Despite having ample time to file a Response in opposition, Defendants have yet to file one and the deadline to do so expired on May 20, 2025. See ECF No. [108]. Next, Defendants filed two motions seeking to strike Plaintiffs’ experts. The first is directed at striking Plaintiffs’ handwriting expert, F. Harley Norwitch, because the report was disclosed after the close of discovery, see ECF No. [86], and the second is directed at striking Plaintiffs’ expert on Venezuelan law, William Enrique Olivero Perez, because Plaintiffs never put

Defendants and the Court on notice of their intent to raise matters of Venezuelan law and failed to timely disclose him as an expert witness, see ECF No. [119]. The Parties have since filed their respective Responses and Replies. See ECF Nos. [96], ECF No. [105], ECF No. [123], and ECF No. [124]. Finally, Defendants filed their Motion for Judicial Notice, asking the Court to take judicial notice of specific copyright listings detailing U.S. copyright registrations for three of the six albums at issue in this case. See ECF No. [88]. Plaintiffs have opposed this request in their Response, see ECF No. [104], and Defendants have filed their Reply, see ECF No. [110]. All four Motions are ripe for review. II. LEGAL STANDARDS

a. Expert Witness Disclosures “District courts have ‘unquestionable’ authority to control their own dockets.” Smith v. Psychiatric Sol., Inc., 750 F.3d 1253, 1262 (11th Cir. 2014) (internal citation omitted). “This authority includes ‘broad discretion in deciding how best to manage the cases before them.’” Id. (internal citation omitted). Rule 26(a)(2) governing expert disclosures reinforces this principle. Specifically, subsection (a)(2)(D) requires that “[a] party must make [expert] disclosures at the times and in the sequence that the court orders.” See Fed. R. Civ. P. 26(a)(2)(D). Subsections (a)(2)(B) and (C) explain which expert witnesses must provide a written report and which witnesses need not do so along with the details of what their respective disclosures must include. See Fed. R. Civ. P.

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